Duty of Reasonable Search and Production

E-Discovery has become an essential aspect in numerous civil litigation cases – but what are the ramifications if the opposing party does not produce? Or if you are unable to produce and meet discovery demand requests on behalf of your client? How is “effort” measured and regulated in the courts?

The responsibility to comply with discovery demands is commonly known as “Duty of Reasonable Search and Production” yet this term may vary slightly from state to state or even jurisdiction to jurisdiction.

The Discovery Technology Group’s white paper on this topic, The Duty of Reasonable Investigation in E-Discovery notes that the gathering of information involving electronically stored information (ESI) presents a unique set of circumstances and thereby requires specific steps with regard to location, security, and production on behalf of litigants. Among the steps that need to be taken is a “litigation hold” to preserve pertinent ESI. Stephanie F. Stacy, author of Litigation Holds: Ten Tips in Ten Minutes defines a litigation hold as a “written directive advising custodians of certain documents and electronically-stored information (ESI) to preserve potentially relevant evidence in anticipation of future litigation”. Stacy adds that litigation holds are also known as “preservation letters” or “stop destruction requests”.

In ourblog last week, we discussed “Spoliation”; litigation holds are an essential step to put the opposing party on notice that certain information is be preserved – in plain English – nothing is to be deleted, shredded, or “lost”. Failure to comply can result in sanctions. But what if your client didn’t know that email would matter? Again, think very carefully before deleting anything because courts may be inclined to rule that “you should have known.” To this end, Stacy quotes the following from Magistrate Judge Piester:

“When a prospect of litigation is present, parties are required to preserve documents that may be relevant to the issues to be raised, and their failure to do so may result in a finding of spoliation of evidence. The obligation to preserve evidence begins when a party knows or should have known that the evidence is relevant to future or current litigation.”